Crane v. State , 57 Tex. Crim. 476 ( 1909 )

DAVIDSON, Presiding Judge.

Appellant was convicted of horse theft, his punishment being assessed at ten years confinement in the penitentiary.

Appellant reserved two bills of exception, which were filed too late to be considered. Court adjourned on the 18th of June. The bills were filed on the 17th of July following. There was an order of twenty days allowed for the filing of bills of exception. This was in accordance with the statute. The bills were filed after the time allowed by the court, and provided by the statute, and, therefore, can not be considered.

1. " Several grounds of the motion for a new trial suggest error on the part of the court in admission of testimony. There being no bills of exception presenting these matters, they can not be considered. It is insisted the court erred in not charging the law applicable to alibi. We are of opinion, under the evidence in this case, that this contention is not well taken. The case is one purely of circumstantial evidence, and the question of alibi was not an issue in the case otherwise than suggested under. the general theory of circumstantial evidence. We are of opinion that the failure of the court to charge on alibi is not of such material character as would require a reversal. An appropriate charge presenting the law of circumstantial evidence was given.

2. There were two special charges requested, which were refused by the court. In the first charge the court was requested to chárge the jury that all testimony as to the contents of the bill of lading, including name of shipper, sought to be introduced in evidence in this case, was by the court excluded from your consideration, and same shall not be considered by the jury for any purpose. On the face of this charge such evidence was not introduced, but only sought to be introduced. We are of opinion it was not necessary to instruct the jury as requested. In the second special charge the court was requested to instruct the jury that an indictment is no evidence of guilt, and the fact that there is an indictment against the defendant in this case should not be considered by them as a circumstance of guilt. There is nothing shown in the record that it was an insistence before the jury that the indictment should be regarded by them as evidence of guilt in any manner either by argument or otherwise, and we, therefore, are of opinion the court did not err in refusing this requested instruction.

3. Appellant insists the evidence is not sufficient to warrant the finding of the jury. As above stated, the testimony is circumstantial, but we are of opinion that it is sufficient to justify the verdict of the jury. ,

There are a great many facts and circumstances in the ease which we think authorized the jury to conclude that appellant was a guilty party in the theft of the horses, but we deem it unnecessary to collate these facts and circumstances.

The judgment is therefore affirmed.

Affirmed.

Brooks, Judge, absent.